Examining Dangers Posed by the Willful Blindness Doctrine in the War on Terror

Total Page:16

File Type:pdf, Size:1020Kb

Examining Dangers Posed by the Willful Blindness Doctrine in the War on Terror CAGING CARELESS BIRDS: EXAMINING DANGERS POSED BY THE WILLFUL BLINDNESS DOCTRINE IN THE WAR ON TERROR SHAWN D. RODRIGUEZ* TABLE OF CONTENTS 1. INTRODUCTION ............................................................................ 692 2. THE WAR ON TERROR ................................................................. 696 2.1. 9/11 as a Catalyst for Change in Policy .......................... 696 2.2. Detainment Centers and Extraordinary Rendition ........ 699 2.3. Military Commissions .................................................... 701 2.3.1. Prosecutions of Detainees Accused of Planning the 9/11 Attacks ..................................................... 709 2.4. Domestic Terror Trials .................................................... 711 2.5. Foreign Criminal Indictments and Domestic Civil Suits Involving U.S. Officials ......................................... 712 3. WILLFUL BLINDNESS AND KNOWLEDGE ................................... 713 3.1. Theory of Willful Blindness in U.S. Criminal Law ........ 714 3.1.1. Knowledge and Understanding ............................. 715 3.2. U.S. Legal Rule on Willful Blindness ............................. 717 3.2.1. Willfulness Versus Negligence .............................. 719 3.2.2. Increasingly Frequent Use and Expansion of the Doctrine in U.S. Law ............................................ 720 3.3. Willful Blindness in International Criminal Law: Joint Criminal Enterprise ............................................... 721 * J.D. Candidate, University of Pennsylvania Law School, May 2009. I would like to thank Professor William Burke-White for his invaluable advice regarding the content and organization of this Comment. I also would like to thank former colleagues Richard J. Schaeffer, Hillary Schaeffer, and Brian Rafferty for their supervision and guidance regarding much of my early research on willful blindness. Finally, I owe many thanks to the editorial staff of the University of Pennsylvania’s Journal of International Law, specifically including Anya Grossmann, Rushmi Ramakrishna, and Jonathan Fortney, for their hard work and patience. All errors are my own. 691 Published by Penn Law: Legal Scholarship Repository, 2014 692 U. Pa. J. Int’l L. [Vol. 30:2 4. CRITICISM AND IMPROPER USE OF THE WILLFUL BLINDNESS DOCTRINE ................................................................. 727 4.1. Confusion Between Willfulness/Knowledge and Negligence ....................................................................... 727 4.1.1. Complexity of Willful Blindness Jury Instructions ........................................................... 729 4.2. Court Criticisms and Suggested Reforms ....................... 733 5. SPECIFIC DANGERS OF THE WILLFUL BLINDNESS DOCTRINE IN THE WAR ON TERROR ............................................................. 736 5.1. Overinclusiveness ........................................................... 736 5.2. Limitations of Knowledge and Understanding by Factfinders ...................................................................... 739 5.3. The Finality of Execution as Punishment ....................... 742 5.4. Threats of Coercion ......................................................... 743 5.5. Critical Responses ........................................................... 744 5.5.1. Regarding Practicality .......................................... 748 6. Conclusion .................................................................................. 749 1. INTRODUCTION The United States-led War on Terror1 has reignited a fierce normative debate between advocates of the potentially competing interests of civil rights and national security. On one hand, some argue that using the broadest measures available to capture and prosecute alleged terrorists around the world is either advisable or necessary in order to protect national security.2 Under this view, the interest in capturing and neutralizing potential threats to public safety outweighs the interest in protecting the civil and 1 The terms “War on Terror” or “war on terrorism” are used in the 2002 U.S. National Security Strategy to define the current U.S.-led set of military campaigns relating to combating terrorism. THE WHITE HOUSE, THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA, Introduction, 27, 30, 31 (2002), available at http://www.whitehouse.gov/nsc/nss/2002/nss.pdf [hereinafter 2002 NATIONAL SECURITY STRATEGY]. As the term “War on Terror” is the most commonly used, this Comment will use that term throughout. 2 See, e.g., Ashcroft Eager to Expand Police Powers, NEWSMAX.COM WIRES, Oct. 26, 2001, http://www.newsmax.com/archives/articles/2001/10/25 /160238.shtml (quoting then Attorney General John Ashcroft: “Let the terrorists among us be warned . [w]e will seek every prosecutorial advantage. We will use all our weapons within the law and under the Constitution to protect life and enhance security for America.”). https://scholarship.law.upenn.edu/jil/vol30/iss2/6 2008] WILLFUL BLINDNESS DOCTRINE 693 procedural rights of the accused. On the other hand, some argue that prioritizing the accused’s civil rights throughout their capture and prosecution is both advisable and necessary in order to protect national security and values.3 Under this view, the interest in maintaining procedural integrity or legitimacy of the legal system in dangerous times outweighs the interest in a potentially overinclusive prosecutorial policy. This Comment takes the latter view with specific regard to the issue of the appropriate parameters of the mens rea requirements used to prosecute and convict accused terrorists, narrowly focusing on the doctrine of willful blindness. Willful blindness4 as a concept has long been a part of U.S. criminal law as a valuable means to convict those accused of committing offenses requiring a mens rea of knowledge who deliberately act to avoid inculpatory knowledge. Recently though, the willful blindness doctrine has grown dangerously overinclusive, resulting in a highly increased risk of convicting defendants who have not acted willfully. Many thinkers have questioned logical inconsistencies in the current doctrine, and courts have struggled to formulate clear and proper jury instructions on willful blindness due to confusion over the doctrine’s proper scope. Additionally, courts and scholars have increasingly criticized the doctrine’s tendency to convict defendants for mere negligence, or at worst, for mere guilt by association. With most terror charges requiring a mens rea requirement of “knowledge” or “willfulness” (particularly 3 See generally William W. Burke-White, Human Rights and National Security: The Strategic Correlation, 17 HARV. HUM. RTS. J. 249, 280 (2004) (arguing that a reconceptualization of the relationship between human rights and national security, including adherence to procedural safeguards relating to human rights, may yield innumerous social, legal, and political benefits). 4 “Willful blindness” is perhaps the most common term for the concept discussed in this Comment, and will be used throughout for the sake of consistency. However, the same concept is alternatively referred to by numerous equivalent terms, such as “deliberate ignorance,” “deliberate blindness,” “willful (or wilful) ignorance,” or “conscious avoidance,” to name a few. Some also refer to willful blindness jury instructions as “ostrich” instructions, for example, see United States v. Alston-Graves, 435 F.3d 331, 338 (D.C. Cir. 2006), or “Jewell instructions,” after the Ninth Circuit’s ruling approving such an instruction in United States v. Jewell, 532 F.2d 697 (9th Cir. 1976). These terms are used interchangeably by both courts and scholars. For discussion of the multiplicity of terms used by courts and scholars for the willful blindness concept, see Thomas A. Hagemann & Joseph Grinstein, The Mythology of Aggregate Corporate Knowledge: A Deconstruction, 65 GEO. WASH. L. REV. 210, 222 n.62 (1997) and Robin Charlow, Wilful Ignorance and Criminal Culpability, 70 TEX. L. REV. 1351, 1352 n.1, 1354 n.8 (1992). Published by Penn Law: Legal Scholarship Repository, 2014 694 U. Pa. J. Int’l L. [Vol. 30:2 conspiracy charges, for example), the dangers of the doctrine of willful blindness become highly relevant. These dangers are particularly acute when applied to the context of those accused of acts of international terrorism5 in U.S. courts and in military tribunals, where many defendants may face execution upon a guilty verdict. In short, this Comment argues that dangers posed by misconstruing and misapplying the willful blindness doctrine create a lurking problem of overinclusive prosecution. These dangers have heightened significance in the context of those accused of acts of international terrorism, who may be subject to execution if convicted. In light of this context, this Comment argues that a reexamination of the willful blindness doctrine is necessary to prevent its improper and overinclusive use. This is not at all to say that prosecutions of accused terrorists should be limited in any way from ordinary prosecutions, or that any special protections should be afforded to such defendants beyond such ordinary paradigms. Rather, the argument is premised more narrowly on the idea that sufficient legal avenues to convict terror suspects exist such that an overbroad construal of willful blindness is neither necessary nor advisable to effect such prosecutions. Thus, expressed most basically, this Comment contends that the willful blindness doctrine should not be
Recommended publications
  • Implied Consent Refusal Impact
    L1 U.S. Department of Transportation National Highway Traffic Safety Administration * DOT HS 807 765 September 1991 Final Report Implied Consent Refusal Impact This document is available to the public from the National Technical Information Service, Springfield, Virginia 22161. * t The United States Government does not endorse products or manufactures. Trade or manufacturer's names appear only because they are considered essential to the object of this report. 0 Technical Report Documentation Page 1. Report No. 2. Government Accessiar No. 3. Recipient's Catalog No. DOT HS 807 765 4. Title end Subtitle S. Report Date September 1991 Implied Consent Refusal Impact 6. Per(onting Orgonization Code .t 0. Performing Organization Report No. 7. Author's) Ralph K. Jones, Hans C. Joksch, Connie H. Wiliszowski 9. Performing Organization Name and Address 10. Work Unit No. (TRAIS) Mid-America Research Institute , Inc . 11. Contract or Grant No. Winchester, Massachusetts 01890 DTNH22-89-C-07008 13. Type of Report and Period Covered 12. Sponsoring Agency Nose and Address Final Report U.S. Department of Transportation May 1989 - July 1991 National H i ghway Traffic Safety Administration 14. Sponsoring Agency Code Washington, D.C. 20590 15. Supplementary Notes 16. Abstract Examines the extent to which persons suspected of DWI refuse to take a chemical test as required by law. Describes implied consent laws in 50 states, analyzes the relation of law features to refusal rate, and analyzes the characteristics of test refusers in four states. Concludes that there is a potential test-refusal problem in the U.S. to the extent that 2% to 71% of drivers arrested for DWI in 1987 refused to take a chemical test.
    [Show full text]
  • Criminal Law—A Body of Public Law That Prosecutes Crimes That Involve Social Harm
    Criminal Law—a body of public law that prosecutes crimes that involve social harm. I. History and Purpose a. Crime—act/omission and its state of mind, that if proven, incurs a formal and solemn pronouncement of the moral condemnation of the community b. Criminal law vs. Civil Law—there are a number of fundamental differences. i. Higher evidentiary burden ii. Higher levels of punishment—deprivation of liberty vs. monetary judgments only (although civil commitment is possible) iii. Double jeopardy—jeopardy attaches when the jury is seated. No DJ if prosecuted in civil trial later or if prosecuted in both state and federal courts. iv. Victim has no control over charges/proceedings v. Criminal conviction results in moral condemnation c. Originally a large body of common law crimes, but now, most crimes determined by the legislature. i. Prohibition of ex post facto laws—laws made after crime committed ii. Prohibition of bills of attainder—laws specific to one person’s conduct II. Criminal Process a. Crimes are defined in advance b. Crime must have been committed/reported (victim has discretion not to report) c. Investigation by police into allegations (police have discretion on whether to pursue) i. Standards of Proof 1. arbitrary and capricious—lowest standard 2. probable cause—standard for arrest warrant/indictment by grand jury 3. preponderance of evidence—more likely than not—civil standard 4. beyond a reasonable doubt—standard at trial for conviction d. arrest of suspect—can search at this point without a warrant and then booking e. probable cause hearing—before a magistrate to determine if can hold (defendant can waive this hearing)—if have grand jury indictment then no probable cause hearing needed (discretion of magistrate/grand jury not to issue warrant/indictment) f.
    [Show full text]
  • School Principals and New York Times: Ohio's Narrow Reading of Who Is a Public Official Or Public Figure
    Cleveland State Law Review Volume 48 Issue 1 Symposium: Re-Orienting Law and Article 16 Sexuality 2000 School Principals and New York Times: Ohio's Narrow Reading of Who Is a Public Official or Public Figure Andrew L. Turscak Jr. Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the First Amendment Commons, and the Torts Commons How does access to this work benefit ou?y Let us know! Recommended Citation Note, School Principals and New York Times: Ohio's Narrow Reading of Who Is a Public Official or Public Figure, 48 Clev. St. L. Rev. 169 (2000) This Note is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. SCHOOL PRINCIPALS AND NEW YORK TIMES: OHIO’S NARROW READING OF WHO IS A PUBLIC OFFICIAL OR PUBLIC FIGURE I. INTRODUCTION .................................................................... 169 II. THE NEW YORK TIMES RULE .............................................. 170 A. Who is a Public Official?............................................. 172 B. Who is a Public Figure?.............................................. 174 III. EAST CANTON EDUCATION ASSOCIATION V. MCINTOSH..... 175 A. Background.................................................................. 175 B. Procedural History ...................................................... 176 IV. IS A SCHOOL PRINCIPAL A PUBLIC OFFICIAL
    [Show full text]
  • A Look at Complicity by Omission Domestically and Abroad
    \\server05\productn\B\BIN\22-2\BIN205.txt unknown Seq: 1 14-JAN-05 14:12 LOOKING ABROAD TO PROTECT MOTHERS AT HOME: A LOOK AT COMPLICITY BY OMISSION DOMESTICALLY AND ABROAD I. INTRODUCTION ............................................ 425 R II. COMPLICITY BY OMISSION FOR MURDER IN THE U.S.: A CASE STUDY OF PEOPLE V. PETERS ....................... 430 R A. Background ........................................... 430 R B. The Law .............................................. 431 R III. DOMESTIC GUIDANCE ..................................... 432 R A. Domestic Federal Guidance ............................ 432 R B. Further Domestic Guidance: U.S. Model Penal Code ... 433 R IV. THE INTERNATIONAL PERSPECTIVE ........................ 435 R A. English Criminal Law ................................. 435 R B. Canadian Criminal Law ............................... 438 R C. French Criminal Law .................................. 439 R D. Analysis ............................................... 442 R V. CONCLUSION .............................................. 446 R “A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury.”1 – John Stewart Mill I. INTRODUCTION For most crimes two elemens need to be proven: the actus reus and the mens rea. Generally, the actus reus of an offense consists of a voluntary act that causes social harm.2 In cases where the defendant has an affirma- tive duty to act, however, a defendant’s omission of that duty may serve as a substitute for the voluntary act.3 Affirmative duties to protect are 1 JOHN STUART MILL, ON LIBERTY 11 (Elizabeth Rapaport ed., Hackett Publ’g Co. 1985) (1859). 2 For a thorough discussion of the two elements, see JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 81-142 (3d ed. 2001). These generalizations are based on American law, and differences in the international law, if any, will be discussed within the relevant section.
    [Show full text]
  • IN the SUPREME COURT of CANADA (On Appeal from the Court of Appeal of Alberta)
    S.C.C. File No. 32912 IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal of Alberta) Between: MICHAEL ERIN BRISCOE Appellant (Respondent) - and - HER MAJESTY THE QUEEN Respondent (Appellant) FACTUM OF THE CROWN RESPONDENT ATTORNEY GENERAL OF ALBERTA PURSUANT TO RULE 42 OF THE RULES OF THE SUPREME COURT OF CANADA JAMES C. ROBB, Q.C. and HENRY S. BROWN, Q.C. TAMARA FRIESEN Cowling Lafleur Henderson LLP Appeals Branch, Alberta Justice Suite 2600, 160 Elgin Street 3rd Floor North Bowker Bldg. Ottawa, ON 9833 - 109 Street KIP lC3 Edmonton, AB Tel: (613) 233-1781 T5K 2E8 Fax: (613) 563-9869 Tel: (780) 427-5042 email: i~ewy.bro~vn@,~li~igs.c.om Fax: (780) 422-1 106 email: james.robb~gov.ab.ca Counsel for the Respondent Ottawa Agent for the Respondent ALEXANDER D. PRINGLE, Q.C. JEFFREY BEEDELL Pringle, Peterson, MacDonald & Bottos Lang Michener LLP Barristers & Solicitors Barristers & Solicitors 100 Street Place 300, 50 O'Connor Street 300, 10150 - 100 Street Ottawa, ON KIP 6L2 Edmonton, AB T5J OP6 Tel: (613) 232-7171 Phone: (780) 424-8866 Fax: (613) 231-3191 Fax: (780) 426-1470 email: jbeedellG$lanm~ichener.ca email: apringle($p&leandassociates.coin Counsel for the Appellant Ottawa Agent for the Appellant TABLE OF CONTENTS PAGE PART I: STATEMENT OF FACTS .................................................................................1 (0 Overview of Case .......................................................................................1 .. (11) Evidence at Trial ........................................................................................2
    [Show full text]
  • Rethinking Complicity and Survival in Paula Vogel's How I Learned to Drive
    Georgia State University ScholarWorks @ Georgia State University English Theses Department of English 5-8-2020 “SHE’S A SLY ONE:” RETHINKING COMPLICITY AND SURVIVAL IN PAULA VOGEL’S HOW I LEARNED TO DRIVE Mary Ann Barfield Georgia State University Follow this and additional works at: https://scholarworks.gsu.edu/english_theses Recommended Citation Barfield, Mary Ann, "“SHE’S A SLY ONE:” RETHINKING COMPLICITY AND SURVIVAL IN PAULA VOGEL’S HOW I LEARNED TO DRIVE." Thesis, Georgia State University, 2020. https://scholarworks.gsu.edu/english_theses/252 This Thesis is brought to you for free and open access by the Department of English at ScholarWorks @ Georgia State University. It has been accepted for inclusion in English Theses by an authorized administrator of ScholarWorks @ Georgia State University. For more information, please contact [email protected]. “SHE’S A SLY ONE:” RETHINKING COMPLICITY AND SURVIVAL IN PAULA VOGEL’S HOW I LEARNED TO DRIVE by MARY ANN BARFIELD Under the Direction of Matthew Roudané ABSTRACT In an early 1998 interview, playwright, Paula Vogel, sat in conversation with Arthur Holmberg to discuss the ambivalent victim-perpetrator power dynamics in her critically- acclaimed play, How I Learned to Drive, explaining that “there are two forgivenesses in the play. one forgiveness for Peck, but the most crucial forgiveness would be Li’l Bit’s forgiving Li’l Bit. Li’l Bit as an adult looking at and understanding her complicity.” Since the Holmberg interview, critics have made only passing references to Vogel’s discussion of complicity in play reviews and critical essays. This thesis represents the first sustained engagement with complicity as an ethical subject to argue that Li’l Bit’s dependence upon her uncle for emotional and sometimes physical survival exempts her from moral scrutiny in the course of his abuse.
    [Show full text]
  • Pattern Criminal Jury Instructions for the District Courts of the First Circuit)
    UNITED STATES DISTRICT COURT DISTRICT OF MAINE 2019 REVISIONS TO PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT DISTRICT OF MAINE INTERNET SITE EDITION Updated 6/24/19 by Chief District Judge Nancy Torresen PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE FIRST CIRCUIT Preface to 1998 Edition Citations to Other Pattern Instructions How to Use the Pattern Instructions Part 1—Preliminary Instructions 1.01 Duties of the Jury 1.02 Nature of Indictment; Presumption of Innocence 1.03 Previous Trial 1.04 Preliminary Statement of Elements of Crime 1.05 Evidence; Objections; Rulings; Bench Conferences 1.06 Credibility of Witnesses 1.07 Conduct of the Jury 1.08 Notetaking 1.09 Outline of the Trial Part 2—Instructions Concerning Certain Matters of Evidence 2.01 Stipulations 2.02 Judicial Notice 2.03 Impeachment by Prior Inconsistent Statement 2.04 Impeachment of Witness Testimony by Prior Conviction 2.05 Impeachment of Defendant's Testimony by Prior Conviction 2.06 Evidence of Defendant's Prior Similar Acts 2.07 Weighing the Testimony of an Expert Witness 2.08 Caution as to Cooperating Witness/Accomplice/Paid Informant 2.09 Use of Tapes and Transcripts 2.10 Flight After Accusation/Consciousness of Guilt 2.11 Statements by Defendant 2.12 Missing Witness 2.13 Spoliation 2.14 Witness (Not the Defendant) Who Takes the Fifth Amendment 2.15 Definition of “Knowingly” 2.16 “Willful Blindness” As a Way of Satisfying “Knowingly” 2.17 Definition of “Willfully” 2.18 Taking a View 2.19 Character Evidence 2.20 Testimony by Defendant
    [Show full text]
  • Defamation: Extension of the Actual Malice Standard to Private Litigants - Colson V
    Chicago-Kent Law Review Volume 59 Issue 4 Article 11 October 1983 Defamation: Extension of the Actual Malice Standard to Private Litigants - Colson v. Stieg James R. Bayer Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation James R. Bayer, Defamation: Extension of the Actual Malice Standard to Private Litigants - Colson v. Stieg , 59 Chi.-Kent L. Rev. 1153 (1983). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol59/iss4/11 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. DEFAMATION: EXTENSION OF THE "ACTUAL MALICE" STANDARD TO PRIVATE LITIGANTS Colson v. Stieg 89 II. 2d 205, 433 N.E.2d 246 (1982) JAMES R. BAYER, 1984* The success of first amendment challenges in the last two decades to the common law tort of defamation has been described as "[u]nquestionably the greatest victory won by defendants in the mod- em law of torts."' The tort of defamation, which provides a cause of action to persons whose reputations are injured as a result of oral or written statements made by others, 2 has been subject to several modifi- cations as a result of these first amendment challenges. For a number of centuries, plaintiffs could often recover without regard to whether the defendant was at fault.3 However, the United States Supreme Court has determined that the first amendment protects some defama- tory speech, and, as a consequence, the Court has imposed a fault re- quirement on the tort.
    [Show full text]
  • Complicity with Evil M
    Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers October 2003 Complicity with Evil M. Cathleen Kaveny Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Common Law Commons, Criminal Law Commons, and the Ethics in Religion Commons Recommended Citation M. Cathleen Kaveny. "Complicity with Evil." Criterion (2003): 20-29. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. COMPLICITY WITH EVIL M. Cathleen Kaveny hen asked what project I am working on while on leave at the Martin Marty Center during the 2002–2003 academic year, the short response I usually give is “complicity with evil.” That response is perfect for cocktail parties in the big city and receptions at large academic conferences. It appears to be glamorous, dangerous, sexy—and hopelessly vague. Unfortunately, like many phenomena at such parties and receptions, the surface impression is actually quite deceptive. The issues that I actually deal with are her contemplated action in light of its connection with the highly specific, and can range from the riveting and heart- wrongful action of another? What considerations should be breaking to the sadly mundane. involved in her decision whether or not to go ahead with The topic of complicity encompasses the following her action? dilemma: Should Sophie Zawistowska, the title character in The more theoretical elaboration of the problem reveals William Styron’s unforgettable novel Sophie’s Choice, have a structural similarity between the two concrete dilemmas accepted the SS physician’s offer to allow her to decide described above.
    [Show full text]
  • Complicity, Jogee, and the Principles of Criminal Law
    Complicity, Jogee, and the Principles of Criminal Law Sarah Tromans A thesis submitted to the University of Birmingham for the degree of Magister Juris (MJur) Department of Arts and Law Birmingham Law School University of Birmingham 2018 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT Complicity, Jogee and the Principles of Criminal Law Sarah Tromans, University of Birmingham MJur, 2018 This thesis explores the rules of complicity and parasitic accessory liability (PAL) in England and Wales and their relationship with the principles of criminal law. Complicity creates a general liability for assisting or encouraging a crime. PAL allowed for the conviction of an accessory to a joint criminal venture, for a possible collateral offence of the principal, as long as it was foreseen as a possible incident of the initial crime. Complicity is important because it attributes responsibility to individuals who contributed in some way to a substantive offence of another, without committing the offence itself. PAL did not work well in practice but was followed for thirty years until Jogee in 2016, which was considered to be a breakthrough in the requisite mental element of complicity and also the abolition of PAL.
    [Show full text]
  • Implied Consent Training Manual
    Mississippi Department of Public Safety Crime Laboratory / Highway Safety Patrol Implied Consent Evidential Breath Alcohol Testing Training 10/14 1 of 70 Evidential Breath Alcohol Testing Training Page # Foreword 3 Introduction 4 Glossary 5 Reference 6 Alcohol 7 Instrument Theory 10 Introduction to a Breath Test 14 Implied Consent Policies and Procedures Appendix A MS Code, 1972 Annotated Appendix B 10/14 2 of 70 Foreword The MS Crime Laboratory (MCL), pursuant to MS Code 63-11-5 and 63-11-19 Implied Consent is authorized to approve satisfactory training of person’s, required to certify the location of evidential breath alcohol instruments, the certification of the calibration of those instruments, and training of those persons conducting evidential breath alcohol testing in the state of Mississippi. This manual is for the instruction, training and certification of those person’s whose duties are described above. This training will also include verbal instructions and demonstration by qualified MS DPS personnel and/or designated agents. It is MCL’s intention that use of this manual will provide an environment for learning, educating, training and referencing by MS DPS personnel and/or designated agents. This material does not supercede current state statue or implied consent policies and procedures. This material will be updated and modified when necessary or required. Training Objectives • Understanding of the terminology and functions of the breath analyzing instrument • Perform a breath test procedure • Identify forms pertaining to evidentiary breath test analysis and properly distribute those forms Permits (Eligibility under MS. Code 63-11-19) • MHP • Sheriff or His Deputies • City Policeman • Officer of a State-Supported Institution of Higher Learning-Campus Police • Pearl River Valley Supply District Security Officer (Ross Barnett Reservoir Policeman) • National Park Ranger • Military Policeman Stationed on U.S.
    [Show full text]
  • A Lawyer's Duty to Inquire When the Lawyer Knows a Client Is Seeking
    142 A LAWYER’S DUTY TO INQUIRE WHEN THE LAWYER KNOWS A CLIENT IS SEEKING ADVICE ON A TRANSACTIONAL MATTER THAT MAY BE CRIMINAL OR FRAUDULENT Adopted July 10, 2021 Introduction and Scope When a client seeks advice or counsel in a transaction that the lawyer knows is criminal or fraudulent, the lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent….” Colo. RPC 1.2(d). But what if the lawyer suspects, but does not actually know, that the client is seeking advice or counsel in such a transaction; must the lawyer inquire further into the client’s request? In April 2020, the American Bar Association (ABA) issued ABA Comm. on Ethics and Prof. Resp., Formal Op. 491, “Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings” (2020) (hereinafter ABA Opinion 491) detailing the existence of a duty to inquire. In this opinion, the Colorado Bar Association Ethics Committee (Committee) considers that question under Colorado law and describes the circumstances in which a lawyer has a duty to inquire. Syllabus This opinion primarily addresses the basis for and the scope of the duty to inquire, including governing rules and the definition of “knowledge.” The opinion concludes that Colorado lawyers should assume that “knowledge” under the Rules includes willful blindness. 1 In this respect, the lawyer’s obligation under the Rules encompasses a duty not to act with willful blindness or to commit or assist a client in committing criminal or fraudulent acts.
    [Show full text]